Heredia v. State

• Decision Date: 29 October 1975
• Docket Number: No. 50315,50315
• Citation: 528 S.W.2d 847
• Parties: Joe A. HEREDIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 847

528 S.W.2d 847

Joe A. HEREDIA, Appellant, v. The STATE of Texas, Appellee.

No. 50315.

Court of Criminal Appeals of Texas.

Oct. 29, 1975.

Lamoine Holland, San Antonio, for appellant.

Ted Butler, Dist. Atty., John Hrncir, Fred Rodriguez and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted of burglary; punishment, enhanced under Article 63, V.A.P.C., was assessed at life.

The sufficiency of the evidence is not challenged.

In his first ground of error, appellant asserts:

'The trial court committed reversible error in overruling Defendant's Motion to Suppress Evidence in finding Defendant gave effective consent to search when without having been apprised of any rights whatsoever, Defendant, if he did consent, did so only after he had been accused of a criminal offense.'

The record reflects that appellant, while driving an automobile, was stopped for a traffic violation. After the officer issued a citation, appellant started to leave the scene. The officer then received a radio report of a recent burglary in the vicinity, and called appellant to question him about the reported offense. The officer stated he suspected appellant might be connected to the burglary because the initial stop had been made due to the speedy and reckless manner in which appellant was driving away from the location of the reported burglary, some three to five blocks away. He further testified that upon confronting appellant with the grounds for his suspicions, appellant invited the officer to take him to the scene of the offense for possible identification, and also invited the officer to search his person and to search the automobile.

Although appellant testified that no consent was given, the trial court was the sole judge of the credibility of the witnesses and the facts on the motion to suppress. The evidence supports the trial court's finding that the search was authorized by appellant's consent. The record does not support appellant's contention that he was the one accused of a crime at the time of the search but, to the contrary, reveals that he was only under suspicion. Furthermore, even had appellant been accused of the burglary, we find that appellant did not merely consent to a request to search, but in fact invited the search, apparently in an effort to dispel suspicion. We decline to hold that in the face of an invitation to search, an officer must interrupt a suspect and warn him that he need not consent to the search. Cf. Ribble v. State, Tex.Cr.App., 503 S.W.2d 551; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Appellant's first ground of error is overruled.

Next, appellant contends he was denied assistance of counsel when the court permitted voir dire of the jury panel in the absence of defense counsel.

The voir dire of the jury panel is not in the record. Appellant sought to preserve error by producing evidence at the hearing on the Motion for New Trial showing the course of events. It is there established in the record that the first five members of the panel were examined on the afternoon before the events complained of. The court directed that the proceedings would resume at 9:00 a.m. the next day. Voir dire resumed at 9:01 a.m. and counsel arrived two or three minutes later, during the State's examination of the sixth member of the panel. Appellant was not denied the right to examine the sixth member of the panel and, in fact, as reflected elsewhere in the record, exercised one of his peremptory challenges on that member. The ground of error is overruled.

In his third ground of error, appellant argues the trial court erred in overruling his objection to the introduction of a judgment and sentence in cause number S--62442 in the 175th District Court of Texas entered September 23, 1963, which objection was for lack of evidence establishing the identity of appellant and the Jose Americo Heredia named in those instruments.

Evidence had been introduced by documents from the Texas Department of Corrections establishing that Jose Americo Heredia was convicted in cause number S--62442 in the 175th District Court on September 23, 1963, of forgery. Fingerprint evidence established the identity of appellant and the person whose conviction was so proven. The indictment in the instant case, however, alleged for enhancement purposes that appellant was previously convicted of passing as true a forged instrument, on September 23, 1963, in cause number S--62442 in the 175th District Court. Because of the variance between the prior offense as alleged and the prior offense as proven, to-wit: passing as true a forged instrument and forgery, the State sought to prove the true offense for which appellant had been convicted in cause number S--62442 in the 175th District Court on September 23, 1963, and to prove that the offense as stated in the records of the Texas Department of Corrections constituted a clerical error. To make such proof they called the deputy district clerk assigned to the 175th District Court and by her introduced the documents complained of on appeal.

Identity had been proven previously, and the documents complained of were offered only to establish the true offense and show the clerical errors in the previously introduced documents. Appellant's objection was without merit and the ground of error is overruled.

In his final ground of error, appellant argues that he is entitled to a new trial because of jury misconduct during the deliberations on punishment.

Appellant asserts, the evidence adduced at the hearing on the motion for new trial shows, and the State in its brief concedes, that during punishment deliberations a statement was made by one of the jurors that a life sentence means only seventeen years.

The State contends that before reversal will be ordered for jury discussion of the parole law it must appear that the juror who makes such a statement must profess to know the law. With this statement we cannot agree, even though in Powell v. State, Tex.Cr.App., 502 S.W.2d 705, 711, we stated, 'It must be shown that the statement was a misstatement of the law and that the juror relied upon this misstatement as an asserted fact.' ¹

Through the years various standards have been asserted to be the test for ascertaining whether jury discussions constitute reversible error.

In Montello v. State, 160 Tex.Cr.R. 98, 267 S.W.2d 557 (1954), the conviction was affirmed upon the finding that the statement was not made as a declaration of fact, nor was there any testimony that any juror was influenced or affected by the discussion. It was observed that commutation of time for good conduct and the executive power to grant pardons and paroles were of common knowledge. It was not held that a defendant must show Both that the statement was declared as fact and that a juror was influenced or affected by the discussion to demonstrate reversible error. The converse is implied in the holding that, having shown Neither, the judgment must be affirmed.

In Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663 (1954), and later in Johnson v. State, 165 Tex.Cr.R. 237, 305 S.W.2d 606 (1957) and Napier v. State, 166 Tex.Cr.R. 361, 314 S.W.2d 102 (1958), it was stated that the proper question on appeal 'is to determine whether or not the information which was received by the jury was untrue Or was harmful to appellant.' (Emphasis added.) The two tests were thus stated to be alternative, not cumulative.

De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544 (1958), affirmed the conviction on facts which showed:

'1. That the jurors voted guilty unanimously.

'2. Thereafter some of the jurors questioned the length of time that defendant would be in the penitentiary if sentenced to a number of years and the note was sent to the judge.

'3. None of the jurors professed to know the provisions of the law, but knew that it was common practice for prisoners to be released from the penitentiary prior to the expiration of the full calendar time which the jury assessed.

'4. After being instructed by the court in answer to their inquiry, the matter was not further discussed.'

It will be seen that under such facts neither of the alternative elements stated in Montello, supra, was shown, and, likewise, neither of the alternative elements stated in Roberson, supra, was shown. On Motion for Rehearing, however, it was asserted that 'only where such discussion is an incorrect statement of the law' will reversal be ordered, citing Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748 (1952). Jackson, however, reversed the conviction because the affidavit in support of the motion for new trial was held sufficient to support the allegations of jury misconduct. Although the affidavit therein alleged a misstatement of law asserted as fact believed by the juror, the court did not hold that all such elements must be shown to demonstrate jury misconduct requiring reversal. The elements were held sufficient to show such misconduct, but were not held necessary for such a showing.

Jackson, supra, in turn, cited Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168 (1947), as an instance where reversal was ordered because one juror gave an incorrect version of the indeterminate sentence law to other jurors. The opinion in Price, supra, however, stated that the comment of the juror had the effect of bringing about a greater punishment, and concluded that under the facts the defendant was deprived of a fair trial. Then on Motion for Rehearing it was added, as if to emphasize the wrong, that not only had a juror advised the others as to the applicability of the indeterminate sentence law, but he had done so incorrectly. It was also pointed out that the State was not permitted to argue the effect of such law to the jury, and that therefore certainly a member of the jury could not...